Quote of the Day

The funniest thing I’ve heard in a while, during today’s Senate Judiciary Committee confirmation hearing of Sonia Sotomayor.  After noting that Justice Scalia had consulted five dictionaries to determine the definition of the word “modified,” Senator Chuck Schumer asked, “Do you believe dictionaries are binding law in the United States?”

In Reply to Randy E. Barnett’s “Seinfeld Hearings”

Many thanks to Caffeinated Thoughts author Shane Vander Hart for calling my attention to an interesting piece by Randy E. Barnett on the recent Senate Judiciary Committee’s confirmation hearing for Sonia Sotomayor.  I was dismayed to see an article in such a publication as the Wall Street Journal miss the mark so often with respect to some very basic issues Constitutional Law, so I wrote a response to some of the questions Mr. Barnett raised.

Mr. Barnett feels some of the following questions ought to be asked of the prospective Supreme Court Justice:

Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.)

I’m afraid Mr. Barnett is mistaken here. Nowhere in the text of the Constitution is there a mention of “an individual right to arms,” rather the Second Amendment protects a collective right to keep and bear arms, to wit: “the right of the people to keep and bear Arms shall not be infringed.”  Moreover, the recent precedent set by certain activists justices in D.C. v. Heller appears to have broadened this right significantly.

Does the 14th Amendment “incorporate” the Bill of Rights and, if so, how and why?

I certainly hope the Senate Judiciary Committee does not waste Mrs. Sotomayor’s valuable time in asking this question.  Simply put, yes the Fourteenth Amendment incorporates the Bill of Rights.

Does the Ninth Amendment protect judicially enforceable unenumerated rights?

As to the function of the Ninth Amendment, this can be a confusing subject, however upon some research I found a quote from Prof. Lawrence Tribe that sums up Mr. Barnett’s mistake quite nicely: “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”  So to ask whether the Ninth Amendment protects anything is really a logically incoherent question.

Does the Necessary and Proper Clause delegate unlimited discretion to Congress?

The “Necessary and Proper Clause,” Art. I Sec 8 Clause 18, does indeed delegate sweeping authority to the Congress, but it is by no means “unlimited,” if for no other reason than that the Bills of Rights and the Constitution itself serve to limit that power.

Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

The “so-called Spending Power” (and it is indeed called so by lawyers and judges) is found in Art. I Sec. 8 Clause 1 of the Constitution, though much like the Dormant Commerce Clause that permits regulation of interstate commerce, it not stated explicitly, rather it is implied by the power to collect taxes. It is essentially the other side of the coin, if Congress can lay taxes, they must implicitly have the power to spend the revenues so collected. And indeed there are severe limitations, see: Article I, Section 9, Clause 7. This is particularly curious of Mr. Barnett’s concerns, since the questions that are usually associated with the Spending Power is not whether it exists but whether the Congress may place conditions on its spending to effectively bribe states into adopting legislation, as was done during the Reagan administration, withholding federal highway funds from states that did not raise the drinking age to 21.

Even asking whether “We the People” in the U.S. Constitution originally included blacks and slaves — as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford — will tell us much about a nominee’s approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?

As to the Dred Scott case, there is really only one acceptable opinion from a Supreme Court nominee with respect to this decision: that that case was wrongly decided.

Perhaps the Wall Street Journal ought to do some better fact-checking in the future, and I certainly hope that none of the Senators on the Judiciary Committee are silly enough to take Mr. Barnett’s advice and waste time with these questions.

The Devil and Judge Weber

A recent discussion at the blogcatalog involved an interesting news article.  This reminded me of an equal unlikely lawsuit that happened right here is the United States, in the Western District of Pennsylvania to be precise.  In this case, Gerald Mayo, a rather unfortunate soul who prayed the court to proceed in forma pauperis, that is to say as an indigent with all litigation fees waived by the court, against the party who, as Mayo alleged in his complaint, had violated his civil rights and was “the cause of [his] downfall.”  The opposing party that Mayo named?  ”Satan, and his Staff.”

The almost appropriately named District Judge Weber issued a tongue-in-cheek opinion, citing concerns as to whether the court could exercise personal jurisdiction over the defendant, and noting that is Mayo’s against the Dark One did proceed, a class action certification under FRCP would be almost certain as joinderof all interested parties would surely be impractible.

As with most dealings with the Devil, this case did not end happily for Mr. Mayo: “Prayer denied.“

Is Justice Rational? What do you think?

I came across this quotation from a leading legal positivist, and I can’t help but find it deeply unsettling:

“Justice is an irrational idea. … [T]hat only one of two orders is ‘just’ cannot be established by rational cognition.  Such cognition can grasp only a positive order … . This order is positive law… .It presents the law as it is, without defending it by calling is just, or condemning it to call it unjust.” Kelsen, General Theory of Law and State 13 (1961).

The trouble is, however, is that is is very close to the mark.  If you want to view justice as rational, then you must have a rational accounting of it.  But are there not as many accounts of justice as there are people on the earth?  What makes one account better than the other?  And if none can be said to be objectively better than the other, does this not merely bring us back the cynical positivism?  Karl Llewellyn has some interesting thoughts on the matter, on his view:

Justice [is] not attainable or even describable substance, but a quest, as being an idea conditioned in the first instance by each quester’s view of the Universe, and conditioned secondly (as Law-Government must always be) by the fact of scarcity.  Whether within an organized group with firm legal-government traditions or within an emerging, half-chaotic world, the justified desires and demands have always exceeded the wherewithal to fulfill them, and they always will.

Karl Llewellyn

I’d like to hear your thoughts on the subject.  All comments and perspectives are welcomed!

And Now Some Thoughts on New York’s Eminent Domain Procedure

Both the Fifth Amendment to the U.S. Constitution and Article I, Section 6 of the New York State Constitution provide that “[n]o person shall be deprived of life, liberty or property without due process of law.” In Kelo v. New London the Supreme Court held that the “public use” requirement is met by mere economic development, a threshold that has been denounced by many as too low. Considering the reaction provoked by the Kelo decision, it may not have the far-reaching consequences that some have feared, as state legislations respond to public outcry with statutory eminent domain schemes that limit state eminent domain power more strictly than the maximum constitutionally allowable. New York’s Eminent Domain Procedure Law Section 302 requires that “at all stages prior to or subsequent to an acquisition by eminent domain of real property necessary for a proposed public project shall make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement.” This is the maximum to which the eminent domain power may be implemented by government, since the Takings Clause of the Fifth Amendment requires any takings of property to be for public use. However, there may be something to be said about statutory schemes such as New York, which still permit eminent domain powers that may seem draconian at first blush. As Nasim Farjad noted in an article published in the Fordham Law Review in 2007:

Proponents of New York’s current EDPL note that although New Yorkers have benefited greatly from revitalization projects throughout the state, especially in New York City, many are unaware or have forgotten that without the use of eminent domain, key areas of New York City may not have thrived to allow citizens to enjoy the fruits of such projects. Supporters of New York’s eminent domain practices, such as developers, whose development projects could face many obstacles if new laws are passed, may take comfort in using the many successful revitalized areas around New York, most notably within New York City, to demonstrate why New York’s public use requirement should not be redefined to prohibit economic development takings.

The eminent domain takings that transformed Times Square provide an example of the power of eminent domain to revitalize key areas of New York City. The projects, which were designed to rid the area of rampant crime, social problems, and physical blight, did just that – they successfully revitalized thirteen acres of land in Times Square. In its brief in support of the respondents in the Kelo case, the City of New York wrote about the success of using eminent domain in Times Square, which resulted in the land “in and around Times Square [being] reborn as a tourist-friendly destination that, in the 2003-2004 season, drew an estimated 11.6 million people to the Broadway shows in that neighborhood, while the area west of Times Square has since become a new residential neighborhood.” However, the Times Square redevelopment project has done more than attract tourists to the area. According to a 2007 economic impact report released by the Times Square Alliance, the Times Square revitalization has resulted in the area generating outstanding increases in tax revenues – $ 1.1 billion in annual tax revenues for New York City and $ 1.3 billion in annual tax revenues for New York State. The Times Square revitalization’s impact on jobs in the area is even more impressive. According to the Times Square Alliance report, “While Times Square represents only 0.1% of the City’s land area, 5% of the City’s jobs are located in Times Square.” 76 Fordham L. Rev. 1121, 1159-1160

A Few Thoughts on the Takings Clause and Kelo v. New London

The Takings Clause of the Fifth Amendment to the United States Constitution restricts the government use of the power of eminent domain by requiring just compensation for the taking of private property for public use.

[T]he Takings Clause places conditions on the government if it wishes to exercise its eminent domain power. The first requires the taking be for a “public use.” What constitutes a public use, however, has undergone numerous modifications. These changes have made it difficult to grasp takings jurisprudence. It is agreed that a government may not take property from A and give it to B for a purely private purpose. However, agreement among scholars and courts seems to stop at this point. The continuing debate focuses on when a state should be allowed to take property through eminent domain for a private party by deeming that private party’s use a public use. 40 Conn. L. Rev. 1623, 1631

The recent Supreme Court case of Kelo v. New London dealt directly with this issue, and has been famously criticized by many in the media. However, the aftermath of Kelo has not seen the particularly devastating consequences that have been imagined.

One important lesson of Kelo and the firestorm of public outrage that it sparked is that constitutional protection is by no means the only protection that private property owners have against unbridled and/or overreaching legislative takings. The political process has a large and important role to play in determining whether takings go forward. For instance, in the aftermath of Kelo, where the public outcry was immediate and vocal, the response of the state legislatures in introducing (and even enacting) legislation that would limit the impact of Kelo in state condemnation actions was swift and severe. 35 B.C. Envtl. Aff. L. Rev. 45

Indeed, some state courts have been openly hostile to Kelo:

In reviewing an appropriation similar to that at issue here, a sharply divided United States Supreme Court recently upheld the taking over a federal Fifth Amendment challenge mounted by individual property owners. Although it determined that the federal constitution did not prohibit the takings, the court acknowledged that property owners might find redress in the states’ courts and legislatures, which remain free to restrict such takings pursuant to state laws and constitutions. In response to that invitation in Kelo, Ohio’s General Assembly unanimously enacted 2005 Am.Sub. S.B. No. 167.

The legislature expressly noted in the Act its belief that as a result of Kelo, “the interpretation and use of the state’s eminent domain law could be expanded to allow the taking of private property that is not within a blighted area, ultimately resulting in ownership of that property being vested in another private person in violation of Sections 1 and 19 of Article I, Ohio Constitution.” Section 4(A), 2005 Am.Sub.S.B. No. 167. The Act created a task force to study the use and application of eminent domain in Ohio, and imposes “a moratorium on any takings of this nature by any public body until further legislative remedies may be considered.” City of Norwood v. Horney, 110 Ohio St. 3d 353, 355

Interesting subject.  Tomorrow I will dedicate a post to a discussion of eminent domain law in New York. Happy Fourth of July, everyone!

Cost-Shifting in E-Discovery for Non-Parties

That’s a lot of hyphens in that title, huh?  But well worth it!

As we all know, discovery is expensive, and the massive volume of electronically stored information (ESI) can make it even more so.  Thus cost-shifting provisions of the rules of civil procedure can often make or break the viability of a case.  This can  pose an especial burden on non-parties:

“When non-parties are forced to pay the costs of discovery, the requesting party has no incentive to deter from engaging in fishing expeditions for marginally relevant material. Requesters forced to internalize the cost of discovery will be More inclined to make narrowly-tailored requests reflecting a reasonable balance between the likely relevance of evidence that will be discovered and the costs of compliance.” Linder a Calero-Portocarrero, 183 F.R.D. 314, 322-23 (D.D.C. 1998).

The federal case law in this area appears to unsettled in the area, but in order for a non-party to shift the costs to the requester requires that the discovery be unduly burdensome.  There are many factors considered by the court to determine is a discovery request rises to such a level:

Questions of undue burden invariably lead to questions of cost shifitng… the Northern District of California sets forth eight factors in determining whether to shift cost to the requesting party: (1) the scope of the request; (2) the invasiveness of the request; (3) the need to separate privileged material; (4) the non-party’s financial interest in the litigation; (5) whether the party seeking production of documents ultimately prevails; (6) the relative resources of the parry and the non-parry; (7) the reasonableness of the costs sought; and, (8) the public importance of the litigation. The Sedona Conference(R) Commentary on Non-Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197 at 200 (Fall, 2008).

Standing in marked contrast to the FRCP, the NY CPLR provides for automatic cost-shifiting with respect to nonparties.  According to CPLR Section 3122d, ”the reasonable production expenses of a nonparty witness shall be defrayed by the party seeking discovery.”

E-Discovery of Inaccessible ESI and the “Good Cause” Standard

Complex civil litigation often hinges on discovery, and the discovery scheme of the Federal Rules of Civil Procedure has traditionally revolved around a cost benefit analysis, with the cost shifting to the requesting party if production is unduly burdensome. The advent of the new e-discovery rules continue this, as provided in FRCP 26(b)(2)(B): “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

This naturally raises the question, what exactly does “reasonably accessible” mean?

The “reasonably accessible” limit reflects worry about e-discovery’s “enormous costs … becoming the single most expensive facet of litigation.” The cost of e-discovery has two key components: (1) quantity – with businesses exchanging 2.5 trillion e-mails annually, 2 million at a typical company, and with computer files often remaining recoverable after deletion, the amount of attorney time needed to review discovery, and the potential for discovery disputes, has increased; and (2) inaccessibility – digital data “can be expensive or virtually impossible to recover” due to “outmoded storage media and software, and dispersion of information.” …[E]-discovery can cost tens or hundreds of thousands of dollars in even fairly typical cases[.]
Scott A. Moss, LITIGATION DISCOVERY CANNOT BE OPTIMAL BUT COULD BE BETTER: THE ECONOMICS OF IMPROVING DISCOVERY TIMING IN A DIGITAL AGE, 58 Duke L.J. 889, 894 (March, 2009).

Of course, nothing in law is that simple. What is that important piece of discovery isn’t reasonably accessible? FRCP 26(b)(2)(B) goes on to say that “the court may nonetheless order discovery from such sources if the requesting party shows good cause.” However, it would seem that the “good cause” standard is anything but standard:

The Federal Rules of Civil Procedure contain numerous good cause standards. It is a canon of statutory construction that a word used in multiple places in the same legal text should have the same meaning. Thus, the various good cause standards in the Rules should receive the same interpretation. But they do not. [...] Even within the more limited universe of discovery rules, there is no single definition of good cause. A party seeking discovery of information that is not relevant to any party’s claims or defenses but is relevant to the subject matter of the action must show good cause pursuant to Rule 26(b)(1); a party seeking a protective order limiting discovery must demonstrate good cause pursuant to Rule 26(c); and a party seeking to conduct an adverse medical examination of another party must demonstrate good cause pursuant to Rule 35(a). Although these good cause standards all appear in the discovery rules, they have each been interpreted differently. As discussed above, the Rule 26(b)(1) good cause standard is weak and does not pose a significant hurdle to parties seeking discovery.
Henry S. Noyes, GOOD CAUSE IS BAD MEDICINE FOR THE NEW E-DISCOVERY RULES 21 Harv. J. Law & Tec 49 at 74-75, (Fall, 2007).

Electronically stored information is hardly a novelty by anyone standards, but in the federal law of discovery it is still a very new concept indeed. It would appear there are still a few kinks that need to be worked out.

The Preliminary Inunction against “60 Years Later” in light of Lennon v. Premise Media Corp.

Courts move slowly, so I’m sure it will be a while before we hear the outcome of J.D. Salinger’s copyright infringment lawsuit against the author of “60 Years Later.”  Upon further research, it is starting to seem that, even granting that plaintiff’s contention that 60 Years is a “rip-off” and is neither parody nor criticism or Salinger’s original, I would venture that it still falls squarely within the bounds of fair use.  Despite being commercial in nature, this unauthorized sequel by all accounts seems to be sufficiently transformative of the original work and does not diminish the value of the original.

There is an interesting New York case that is on point.  In Lennon v. Premise Media Corp, Yoko Ono sued the makers of the recent Ben Stein movie “Expelled” for using a 15 second snippet of Imagine without permission:

Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. P 6.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Lennon v. Premise Media Corp., L.P., 556 F. Supp. 2d 310

Thus, the court denied a preliminary injunction because “defendants are likely to prevail on their fair use defense, plaintiffs have failed to show, on the basis of the record developed to date, a clear likelihood of success or even a simple likelihood of success on the merits of their copyright infringement claim.”(ibid.)

Numerous parrallels can be drawn between Lennon and the Salinger case.  60 Years seems to be prima facie to be transformatve, if only insofar as the main character has been aged 60 years and is in a different setting that the original Catcher in the Rye.  Furthermore, “the effect of the use upon the potential market for or value of Catcher could only be miniscule considering what an important place it has in the world of literature, 60 Years poses no serious danger to it.

So it would seem, based on the holding in Lennon, that the recent preliminary injunction against the publication of 60 Years was incorrect, and furthermore that the likelihood of Salinger’s success of the merits here is poor.

D.C. v. Heller, Roe v. Wade, and the Fallacy of Scalia’s “Textualism”

I have to preface this post by saying that I am an advocate of a Constitutionally protected right for citizens to keep and bear arms in self defense.   But, like the Constitutionally protected right to privacy established in Roe v. Wade, this right is not something that is actually to be found within the original meaning of the Constitution.  And though I believe that D.C. v. Heller, last year’s landmark Second Amendment Supreme Court case, had the right outcome in establishing such a right, it is unfortunately based on abysmally bad analysis on the part of the majority opinion author Justice Scalia.  As the brilliant Judge Posner wrote of the Heller case:

The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias’ effectiveness. Suppose part of a state’s militia was engaged in combat and needed additional weaponry. Would the militia’s commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
The Court evaded the issue in Heller by cutting loose the Second Amendment from any concern with state militias (the “National Guard,” as they are now called). The majority opinion acknowledges that allowing people to keep guns in their homes cannot help the militias, because modern military weapons are not appropriate for home defense (most of them are too dangerous), and anyway the opinion says that the only weapons the Second Amendment entitles people to possess are ones that are not “highly unusual in society at large.” Modern military weapons are highly unusual in society at large. By creating a privilege to own guns of no interest to a militia, the Court decoupled the amendment’s two clauses. from Richard Posner, In Defense of Looseness

What Scalia did with the Heller opinion is undermine the very foundation of the outcome he wanted to achieve.  By resorting to shoddy historical cherry-picking, Scalia debases his own closely held philosophy, and becomes himself an activist, (or to use his own turn of phrase, a “vigilante justice”).  See, via Fabius Maximus:

If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority.” Antonin Scalia, Vigilante Justices: The Dying Constitution

So, by employing these vigilante tactics, Scalia is not only abrogating his notion of the Consitution as dead, but he is allowing those who oppose his politics to use his own words against him.   Scalia’s logic as employed in Heller would lead him to endorse the outcome of Roe, a decision which he condemns on the grounds that the “Constitution says nothing about abortion.”  Well, it also says nothing about a right to keeping handguns for self defense– so which is it? Indeed, the partisanship of Justices can sometimes be quite appalling, and just as Scalia is willing to violate his own principles as a means to a right-wing end in the Heller case, so too might a majority left-leaning court be willing to adopt an “textualist” position for the purpose of overthrowing Heller.